Attorney General Labrador continues to endanger pregnant women

Guest Editorial by Jim Jones

Most lawyers will take a hint from the courts when they are told a legal argument does not hold water. Idaho’s Attorney General Raul Labrador is a rare exception. Despite having been told by three different courts–Idaho’s Federal District Court, the U.S. Supreme Court and the U.S. Ninth Circuit Court of Appeals–that his argument on Idaho’s total abortion ban is wrong-headed, he keeps making the same losing argument. Labrador contends that Idaho’s abortion law is Identical in effect to a federal law, the Emergency Medical Treatment and Labor Act (EMTALA), which requires most hospitals to give stabilizing care to pregnant women who come to the emergency room with life-threatening complications.

After three strikes against him over the last couple of years, Labrador was at it again on March 5, trying to convince the federal judge in Idaho, who first ruled against him, that he was right this time around. The judge did not seem to be buying the same old argument this time, mainly because it was dead wrong. The judge inquired of Labrador’s deputy at the hearing whether he should “substitute the attorney general’s judgment over what the doctors decided.” It was a good question because Labrador does not have any medical credentials. Just because he somehow managed to obtain a Juris Doctor degree does not mean courts should give weight to his medical views.

The crux of the case is whether the emergency care required by EMTALA can include abortion care. Idaho’s total abortion ban only allows an abortion “to prevent the death of the pregnant woman.” That means the woman must be on death’s doorstep before she can get any necessary care. The doctor is allowed to make that call “in his good faith medical judgment” but, if that call is questioned by a prosecutor, he or she can spend from 2 to 5 years in prison. An overzealous prosecutor can usually find an expert witness who will testify that such a call was wrong. With a loaded gun pointed at the doctor's head, it is understandable that doctors will perform few medically-necessary abortions. Labrador seems to be indifferent to the fact that coercing doctors out of making a correct, life-saving decision will cause women to suffer, perhaps die.

We see no other occupation where making a questioned call can result in a prison sentence. If a stock advisor caused you to buy Tesla stock in January, the advisor can’t be sent to prison because the stock has since tanked. If you buy a steer for the family freezer that turns out to be diseased, the stockman can’t be imprisoned. If an attorney makes the same unsound, losing argument to 3 different courts in the same case, he won’t face any prison time.

After the Idaho District Judge ruled that the two laws were not the same and that EMTALA trumped Idaho’s total ban, the case went to the U.S. Supreme Court. The high court refused to buy Labrador’s argument that the two laws were the same. A “frustrated” conservative Justice, Amy Coney Barrett, asked Labrador’s deputy, “If there’s no instance where EMTALA and Idaho law clash, then why are you here?” The Court seemed to be impressed that 6 pregnant women had to be transported out of the State of Idaho to get appropriate care during a three-month period when Idaho’s total ban had been in effect. The Supreme Court rejected Labrador’s arguments, allowing emergency care under EMTALA to continue.

The case went back to the Ninth Circuit Court, which refused, also, to buy Labrador’s argument. One judge asked Labrador’s deputy if the appeal was “an exercise in futility,”

noting that Idaho had suffered no injury from giving priority to EMTALA.

That brings us back to the March 5 hearing before the federal judge in Idaho. It is likely that the judge will again hold that EMTALA takes priority over Idaho’s total ban. The lawsuit is now being pursued against Labrador by St. Luke’s Health Systems. The federal government bowed out of the case, undoubtedly at Labrador’s urging. True to form, he continues to insist that “there is absolutely no conflict between Idaho’s law and EMTALA,” despite all of the court determinations to the contrary.

This would all be rather comical, if it did not cause such fear and heartache for pregnant women who develop life-threatening complications necessitating emergency care. Not only are they exposed to great medical danger, but they can also lose a treasured addition to their families–all for the glory of a misguided, and not very competent, political climber. Reasonable lawyers know when to quit beating a dead political horse.

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About the Author

Jim Jones is a Vietnam combat veteran who served 8 years as Idaho Attorney General (1983-1991) and 12 years as a Justice on the Idaho Supreme Court (2005-2017). His columns are collected at JJCommonTater.com.